Edgin v. Talley

• Decision Date: 02 November 1925
• Docket Number: 202
• Citation: 276 S.W. 591,169 Ark. 662
• Parties: EDGIN v. TALLEY
• Court: Arkansas Supreme Court

276 S.W. 591

169 Ark. 662

EDGIN v. TALLEY

No. 202

Supreme Court of Arkansas

November 2, 1925

Appeal from Franklin Circuit Court, Ozark District; James Cochran Judge; reversed in part.

STATEMENT BY THE COURT.

George Edgin and Goldia Floyd, minors, by next friend, instituted separate actions at law against Claud Talley and C. G. Harman to recover damages for an assault.

George Edgin was a witness for himself. According to his testimony he was twenty years of age and had lived at Ozark, Franklin County, Ark., nearly all of his life. On the Sunday in question he had driven in his automobile from Altus to Ozark with Goldia Floyd and some other companions for the purpose of attending a singing convention. After attending the singing convention at the court house, they drove on up town to a filling station at a moderate rate of speed, something like eight or ten miles an hour. George Edgin heard some one call for some one to stop, but did not pay any attention to it. There were a large number of people on the public square and he was not impressed that any one was calling to him. The first he knew a bullet came through the car, hitting the wind shield and it commenced falling out. The bullet went between George Edgin and Goldia Floyd. Two shots were fired, but just one of them went through the car. The witness then immediately stopped the car, but did not know who did the shooting until Claud Talley came down to the car. Talley then arrested the witness and carried him to jail. He refused to let him make bond, but locked him up in the jail and kept him there something over an hour. No warrant of any kind was served on the witness. No charge was afterwards preferred against him. The witness offered no resistance whatever and was not undertaking to assault or injure Talley in any way at the time. He knew that Talley was an officer, but did not know that he or any other officer wanted him for any purpose.

Other witnesses testified in behalf of appellant, George Edgin, and corroborated his testimony.

George Edgin testified that he was not drinking or drunk at the time he was arrested and several witnesses corroborated his testimony in this respect.

Goldia Floyd was a witness for herself. According to her testimony she was seventeen years of age and lived at Dyer, Ark. She was in Ozark on the Sunday in question, and was riding on the same seat in the car with George Edgin. She did not hear any one say "Stop," or anything of that kind. There were two shots fired. One of the shots went through the car and the bullet went through her hair on the left side and burned it. The bullet also struck the wind shield and broke the glass in it. The glass from the wind shield struck her and caused an injury to her leg. She was confined to her bed about two weeks as the result of her injuries, and it was a month before she was able to take up her studies at school. She was rendered very nervous by her injuries, and this condition continued about two weeks.

The physician who attended her described her injuries. He found one place just above her knee pretty badly cut and one cut below her knee. She was very nervous, and her nervous shock was caused from some injury.

According to the testimony of Claud Talley, one of the defendants, he lived in Ozark and had been deputy sheriff and jailer of Franklin County for thirty-eight months before the Sunday in question. He was still deputy sheriff at that time, and as such received information that George Edgin and others were drunk on the public road towards Altus. Shortly after this information was received, Talley saw George Edgin driving a car along the streets of Ozark. He said, "Hold on, George, I want to see you." He then called to Fred Wilson to have George stop the car. Fred put his head in the car and said something to George. Talley then called to George Edgin again to stop, and, upon his failing to do so, he fired his pistol at the casing on the car. He fired two shots at the car, and the next thing he heard was a woman screaming, and then the car stopped. C. G. Harmon, the sheriff, was there taking George Edgin out of the car when he reached him. There were two girls in the car, but he did not know it until after he fired the two shots. The sheriff turned George Edgin over to Talley, who took him to jail and kept him there for a while. Talley did not shoot at Edgin, but shot at the tires of the car to cause him to stop it. The bullet that went through the car struck something first. The purpose and intention of Talley in firing the shots was to disable the car and cause it to stop.

Other witnesses corroborated Talley in his testimony both as to the shooting and as to the drunkenness of George Edgin.

According to the testimony of C. G. Harman, he had been sheriff of Franklin County for three years at the time of the shooting. Just previous to the shooting, Talley and Harman had been down on the river looking for some law violators. Harman received information that George Edgin and others were drunk, and were likely to hurt some one. When Harman got back to Ozark, and just after he separated from Talley, he heard someone say, "Halt" or "Stop." He heard this two or three times and then heard a gun shoot. When he looked around, he saw some one coming down the street in a car and ran out in front of it. Just about that time he heard the second shot. Then he heard some girl scream and ran to the car and jerked its door open. By that time the crowd had gathered, and Talley walked up to the car. Harman put George Edgin under arrest for drunkenness and directed Talley to carry him to jail, and when he was sober enough to turn him out.

On cross-examination, Harman testified that he guessed that he directed Talley to arrest Edgin if he came to town on the day in question. George Edgin was drunk at the time he was arrested and was not able to take care of himself. Talley was directed to take George Edgin home as soon as he was sober enough. Harman also stated that he never directed his deputies to shoot at anything except the casings of a car to stop it.

The cases were consolidated for the purpose of trial, and in each case the jury returned a verdict in favor of appellees. The case is here on appeal.

Judgment reversed, and cause remanded.

Benson & Benson and Dave Partain, for appellants.

G. C. Carter and Evans & Evans, for appellee.

HART J., WOOD, J., dissents.

OPINION

HART, J., (after stating the facts).

In the case of Thomas v. Kinkead, 55 Ark. 502, 18 S.W. 854, Judge MANSFIELD made a thorough examination of the principles of law governing cases of this sort in an action wherein a constable was sued for damages for the unjustifiable shooting and killing by his deputy of a person charged with the commission of a misdemeanor to prevent his escape after being arrested. The court reversed a verdict for the defendant because of the charge of the trial court that the defendant had a right to shoot deceased if it was necessary to prevent his escape. It was said that the force which an officer may lawfully use to prevent the escape of one arrested for a misdemeanor is no greater than such as might have been rightfully employed to effect his arrest. The officer cannot in either case take the life of the accused or inflict great bodily harm except to save his own life or prevent a like injury to himself.

The learned justice concluded his review of the authorities and a statement of the rule of the common law as follows:

"We can see no principle of reason or justice on which such a distinction can rest, and we therefore hold that the force or violence which an officer may lawfully use to prevent the escape of a person arrested for a misdemeanor is no greater than such as might have been rightfully employed to effect his arrest. In making the arrest or preventing the escape, the officer may exert such physical force as is necessary on the one hand to effect the arrest by overcoming the resistance he encounters, or on the other to subdue the efforts of the prisoner to escape; but he cannot in either case take the life of the accused, or even inflict upon him a great bodily harm, except to save his own life or to prevent a like harm to himself." See also case note to 3 A. L. R. at p. 1173.

The general rule is that for all civil purposes the acts of a deputy sheriff or constable are those of his principal. Hence a sheriff or constable is liable for the act, default, tort or other misconduct done or committed by his deputy, colore officii. Moores v. Winter, 67 Ark. 189, 53 S.W. 1057; Frizzell v. Duffer, 58 Ark. 612, 25 S.W. 1111; 35 Cyc....